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IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


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Phote)graphic 

Sdences 
Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


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CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  canadien  de  microreproductions  historiques 


I 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


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D 
D 
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n 

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Ce  document  est  film6  au  taux  de  reduction  indiqud  ci-dessous. 


10X 

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itx 

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SOX 

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12X 

16X 

20X 

24X 

28X 

32X 

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or  illustrated  impression. 


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shall  contain  the  symbol  -h^  (meaning  "CON- 
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Un  des  symboles  suivants  apparattra  sur  la 
dernidre  image  de  cheque  microfiche,  selon  le 
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method: 


Les  cartes,  planches,  tableaux,  etc.,  peuvent  dtre 
film6s  i  des  taux  de  reduction  diffdrents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
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et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  ndcessaire.  Les  diagrammes  suivants 
illustrent  la  mithode. 


1 

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3 

32X 


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is 
I 


. 


SPEECH 


oi 


MR.  BARNARD,  OF  NEW  YORK. 


in   UBiATiua   TO 


THE    DESTRUCTION  OF  THE   ''  CAROLINE,' 


Airo 


THE  CASE  OF  McLEOD. 


Delivered  in  the  Houbc  of  Kepresentutiveg,  August  31,  1841. 


WASHINGTON: 

FRINTED   AT   THE   NATIONAL.   INTEl.LIGENCEB   0?riCB> 

1841. 


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S  P  E  K  C  IT. 


THE  AFFAIR  OF  THE  CAROLINE  AND  THE  McLEOD  CASE. 
I^r  TiiK  House  of  Rei-hesestativks,   Almhst  31,    1811. 

The  House  having  under  coiiHiileration  a  resolution  calling  on  the  President  for  inforint- 
tion,  Sic. — 

Mr.  BARNARD  rose,  and  addrcssod  tlie  flouso  as  fdllows  : 

Mr.  Si'K.AitEit:  [  slcill  speak  to  tln>  parliciilar  iiioril!)  of  ilie  resolution  on  your 
tablo  as  little,  [trobahly,  as  any  nieniber  who  has  ineceded  nio  in  this  debate.  In 
trulli,  sir,  it  must  be  a|»|)arent  to  all  that  this  resolutioi)  was  introduced,  originally, 
chielly  with  a  view  to  make  it  tlie  occasion,  not  llie  subject  of  a  debate  ;  at  any 
rate,  such  lias  been  the  result. 

''^Iie  |)0(*iiions  which  iiad  been  taken  by  the  Secretary  of  Slate,  Mr.  Webster, 
in  his  correspondence  wiili  Mr.  Fo,v,  ilie  ISriiish  Minister,  residing  at  Washing- 
ton, in  relation  to  the  destruction  of  the  "  Caroline,"  and  the  case  of  McLeod, 
were  assailed  at  a  very  early  day  in  the  pr'^sent  session.  The  war  was  begun  in 
the  Senate,  and  it  had  no  sooner  ended  there  tlian  it  was  revived  and  prosecuted 
with  new  vigor  in  this  Hall.  Sir,  since  the  last  voice  was  heard  on  this  floor,  in 
tones  of  condeiTination  lowaids  the  Secretary,  we  have  hud  an  authoritative  opin- 
ion pronounced  on  the  same  subject  by  the  Judges  of  tiie  Supreme  Court  of  the 
State  of  New  York;  and  it  must  be  confessed  that  that  opinion  goes  the  full 
length  of  aftirming  and  defending  the  strongest  and  most  extreme  positions  which 
any  party  man,  in  either  end  of  this  Capitol,  however  violent  and  ultra,  had  seen 
fit  to  take  upon  the  subject.  What  1  propose,  at  the  present  time,  is,  to  enter  on 
a  brief  analysis  and  examination  of  this  opinion  of  the  learned  judges  of  my  Stale, 
in  order  that  I  may  see  for  niyeelf,  and  that  the  House  may  see,  how  much  defer- 
ence it  is  really  entitled  to.  Before  entering  on  this  task,  however,  I  must  beg 
leave,  by  way  of  preparation  for  the  proper  apprehension  of  the  case  we  have  in 
hand,  to  submit  to  the  House  a  succinct  statement  and  recital  of  facts. 

It  was  in  the  night  of  the  29ili  of  December,  1837,  that  an  American  vessel a 

steamboat  called  the  "Caroline" — with  an  American  crew,  and  other  American 
citizens  on  board,  lying  in  American  waters — being  moored  to  the  dock  at 
Schlosser,  on  the  Niagara  river,  in  the  State  of  New  York — was  suddenly  attack- 
ed by  a  body  of  armed  men  '".  jin  the  Canada  shore,  who,  with  the  weapons  and 
in  the  manner  of  war,  carried  the  vessel  by  boarding,  killing  some  and  wound- 
ing others;  and  then,  cutting  her  loose  from  her  moorings  and  hauling  her  into  the 
stream,  and  setting  her  on  fire,  sent  her  off,  with  whatever  and  whoever  remained 
on  board,  and  in  whatever  condition,  to  an  appalling  fate  down  the  cataract  of  the 
Niagara. 

Now,  sir,  in  the  face  of  this  transaction,  without  further  explanation,  all  will 
agree,  as  all  did  agree  at  the  time,  that  here  had  been  coinmitted  an  outrage  for 
which  the  Imperial  Government  of  Great  Britain  must  answer — an  outrage  which 
must  either  be  justified  by  some  strong  and  overwhelming  necessity,  or  (or  wliicli 
the  most  ample  reparation  must  be  made,  or  which  must  be  redressed  by  war. 
The  case  was  clearly  one  upon  which  an  issue  of  peace  or  war  was  to  be  made 
up  between  the  two  Powers  ;  and  this  was  an  issue  which  was  to  be  determined 


between  tlie  two  fJoveriiments,  in  the  first  instanre,  !n  tlie  nsiial  form  of  nepotia- 
tion — ii  matter,  ol  course,  a[)|ierlaiiiiii^  wliolly  and  exclnsivelv,  on  our  |)art,  to  tlio 
President  ol' llie  United  States,  as  llie  Cliiel  Kxeciilive  Majiisirale  ol'liie  nation, 
aided  by  tlie  a|)|)ro|)riat(;  functionaries.  Such  ne;:oliaii(jn  would  have  for  its  ob- 
ject (su()|»i)sin/,  justification,  as  was  and  is  still  believed,  wholly  oui  of  the  <|ues- 
tion)  eiiiier  to  oinain  com|ilete  re|)araliori  for  tins  national  insult  and  injury — pre- 
servinj^f  at  the  same  time  an  honorable;  |>eace — or  to  |)la(  e  on  record,  and  before 
tjie  world,  a  full  and  complete  jnstifiralion   for  a  necfssaiy  and  unavoidable  war. 

The  first  thing  inciimixnt  on  the  President  of  the  United  Stales  to  do  was  to 
am  himself  with  tin;  facts  in  tlie  case,  and,  upon  those  facts,  to  determine,  for 
himsell  and  for  the  whole  country,  on  the  precise  nature  and  character  of  ilu!  trans- 
action. Accordingly,  wn  lind  31r.  F<irsylh,  the  Secretary  of  State,  under  the  di- 
rection of  the  President,  wiihiii  one  week  alter  this  astounding  event  had  trans- 
pired, namely,  on  the  5lh  <l;iy  of  January,  18.'{8,  submitting  to  the  Uritisli  Minis- 
ter, Mr.  Fox,  certain  papers  and  documents  in  relation  to  ibis  extraordinary  outrage, 
and  askinj^  that  Minister  to  furnish  in  return  any  facts  or  explanations  which  lie 
might  receive  from  the  [)rovincial  authorities  of  Upper  Canada.  In  the  same 
comnninication,  Mr.  Fox  was  informed  that  this  matter  "  would  necessarily  form 
the  subject  of  a  riemand  fen  n-dress  on  the  British  (iovernnienl."  On  the  Gtli  of 
February,  I808,  Mr.  Fox  submits  to  Mr.  Forsyth  a  letter  which  h(«  had  received 
from  Sir  Francis  Head,  the  Governor  of  Upper  Canada,  logellier  with  oiher  ofli- 
cial  and  lesral  papers  relating  to  the  destruction  of  the;  "  Caroline." 

Now,  tlie  facts  disclosed  in  all  these."  papers  and  documents,  when  stimmeel  up, 
were  chie;lly  tlie-se  :  That  a  consideralile  force  of  armed  men  liad  taken  military 
possession  of  \avy  Island,  on  the  Canada  side  of  the  Niagara  river,  with  the  pre)- 
fossed  and  avowed  purpose  ol  efl'ectiug  a  rejvolution  in  U'jipiT  Canada,  and  wrest- 
ing that  province  from  the  dominion  of  the  British  Crown  ;  that  Governor  Head 
had  placeel  a  large  military  force  on  that  frontier,  iinde-r  the  itnmediate;  ce)nimand 
of  Ce)lon(.'l  McNab,  an  officer  in  regular  commission  in  he-r  Britannic  Majesty's 
provincial  militia,  who  was  instructed  to  act  on  the  defensive  ajn^ainst  the  revolu- 
tionizers  of  Navy  Island,  and,  particularly,  to  do  no  act  "  which  the  American 
Government  could  justly  ce)m[)lain  of  as  a  breach  of  neiitralily  ;"  that  the  expe- 
dition for  the  destruction  of  the  "  Caroline"  was  ordered  by  (Jolonel  McNab  as  a 
defensive  act,  deemed  l)y  him  indispensable,  and  expressly  on  the  ground  that 
that  vessel  ''  was  identified  wiiii  tiie  lorce  which  had  invath'd  Upper  Canada  ;" 
th:it  the  enterpri  ?  was  under  the  immediate  command  of  Captain  Drew,  bearing 
her  Majesty's  commission  as  a  commander  in  lufr  Majesty's  Navy,  aided  by  two 
other  commissioned  olficers  of  the  Ke)yal  Navy,  one  a  captain  and  the  other  a  lieu- 
tenant, and  having  an  armed  force  of  forty  men;  and,  finally,  that,  in  attacking, 
boardinff,  and  cutting  out  and  elestroying  the  "  Caroline,"  the  whole  was  done  by 
force  of  arms,  with  military  array,  and  in  the  manner  of  war,  the  attacking 
party  iiaving,  according  to  the  official  report  of  Captain  Drew,  suffered  severely 
in  the  conflict. 

With  the'se  facts  before  him,  tlie^  President  of  the  United  States,  as  was  his 
duty,  made  up  his  solemn  decision  aiiel  determination,  for  himself  and  for  the 
whole  country,  in  regard  to  the  nature  and  character  of  this  transaction.  What 
that  decision  and  determination  we?re  may  be  fully  seen  by  refere-nce  to  the  letter 
of  Mr.  Steve-nson,  e)ur  Minister  to  Kngland,  of  the  22d  of  May,  1838,  to  Lord  Pal- 
merston,  in  whicli,  under  the  express  instructions  of  the  President,  he  makes  a  re- 
presentation of  this  outrage  to  the  British  (ioveriiment,  with  a  demand  for  redress. 
A  single  sentenete  from  this  despate:h  of  Mr.  Stevenson  will  show  what  the  nature 
;  nd  character  of  the;  transaction  were,  as  it  had  been  determined  by  the  Presielent. 
It  was  charged  by  the  American  Minister  as  "  an  invasion  of  the  territory/  and  so- 
vereignty of  an  indrprndent  notion,  Inj  the  armed  forces  of  a  frievdhj  Power" 

To  examine  the  position  hero  taken  with  a  liiile  particularity.     The  act  com- 


»f  nepotia- 
lart,  to  tlie 
lie  nation, 
or  its  ob- 

tli(j  «|ues- 
ur> — |»re- 
iiid  before 
Jable  war. 
do  was  to 
•rniinc,  for 

the  trans- 
ler  tlu'  di- 
liad  irans- 
[isti  Minis" 
ry  outrage, 
i  wliich  lie 
I  till!  same 
^arily  form 

the  6tli  of 
id  received 

oilier  olli- 

immed  up, 
en  military 
til  tin;  pro- 
and  wiest- 
irnor  Head 
(  command 
:  Majesty's 
I  lie  re  vol  u- 
'  American 
tlie  expe- 
^cNab  as  a 
round  that 
Canada  ;" 
w,  bearing 
Jed  by  two 
itlier  a  lieu- 
1  attackinj;, 
vasdone  by 
attacking 
ed  severely 

as  was  his 
uid  for  the 
on.  What 
U)  the  letter 

0  Lord  Pal- 
nakes  a  rc- 

for  redress. 

1  the  nature 
a  President. 
ori/  and  so- 
li/ Power." 
le  act  com- 


plained of  was  "an  invasion  ;"  not  a  mere  trespass  on  private  property,  siiclt  as 
individuals  niiclit  commit,  but  an  act  appropiiate  to  war,  and  such  as  one  nation 
commits  against  another  nation.  It  was  an  invasion  "  of  tli.i  territory  and  .sove- 
reignty of  an  iiidej)endent  nation;"  not  a  uuwr,  iniriision  into  some  man's  firivate 
premises  or  close,  nor  even  a  niero  invasinn  of  the  soil  or  sitvtieigiiiv  of  .New 
York  ;  it  was  the  t(!rritory  and  sov«!rei||>nty  of  the  American  nation  ;  it  was  the 
ri!,'ht  of  eminent  domain;  it  was  the  supreme  |iower  and  auiliority  in  the  coun- 
try; it  was  llii-  peacealile  dominion  of  I  he  laws;  it  was  national  etpialily  and  in- 
d'lpemlnicc  :  it  was  those  that  had  been  forcibly  interrupfed  and  vidlated.  And 
then,  tli{!  act  was  done  with  the  aid  of  "  armed  fi)rc<'s  ;"  it  was  not  a  mob,  this 
invadiiic  parly  ;  not  a  com|)any  of  rioters  ;  not  a  band  of  marauders  and  robbers  ; 
but  it  was  an  organized  military  force,  such  as  {i; Ttains  to  fJovf rnmeiits  and  na- 
tions. And,  finally,  here  was  a  military  and  hostile  invasion  of  the  coiiniry  by  "  a 
friendly  Power  ;"  ^o  that  thu  ai.'uression  was  a:r!,'ravati:d  by  the  fact  that  it  was 
committiid  against  the  faith,  and  in  the  face  of  a  treaiy  of  amity  and  peace  actu- 
ally existintr  between  \\\{\  two  countries. 

Such,  then,  were  the  natnn;  and  character  of  this  transaction,  and  such  were  the 
position  and  aliiiude  of  the  President  and  of  the  country  in  r(!gard  to  it  ;  and  now  it 
is  material  to  observe  tiiat,  from  tliat  period  down  to  th(!  present  hour,  this  posi- 
tion an!  tfiis  aitilu.ie  have  never  been  relimiiiished  or  clian'j;ed  by  the  (Government 
in  the  slightest  niiinner  or  decree.  They  \v(!re  taken  under  the  Presidency  of 
Mr.  Van  IJtiren,  and  when  IVIr.  Korsyili  was  .S(;crctary  of  State,  and  they  iiave 
been  maintained  under  those  who  have  succeeded  to  tlie'.r  places. 

It  is  sini^uhir,  certainly,  that,  to  the  present  hour,  no  answer  has  ever  been  giv- 
en to  the  demand  niadc^  on  the*  IJritisli  (jovernmeni  for  redress,  ttirouii;h  Mr.  Ste- 
venson ;  lliou(,di  it  is  certainly  true,  at  the  same  time,  that  the  demand  has  never 
been  withdrawn.  The  diicuments  in  the  case  show  tliai  Mr.  Stevenson  was  in- 
formed, in  September,  IS'Ji),  by  Air,  I'orsylh,  that  tiie  Prcisident  expected,  from 
some  inl'ormation  he  had  then  lately  rec(Mved,  that  "  the  liritish  (iovernment  would 
answer  l!i(!  auplication  in  the  case  without  much  further  delay." 

Hut  though  no  answer  has  been  received  to  the  demand  for  redress,  yet  a  cor- 
respondence has  taken  place  on  the  subject  between  \.\w  British  Minister  at  Wash- 
ington and  the  Secretary  of  State.  Tliis  was  occasioned  by  the  arrest  of  one  Al- 
exander McLeod  in  the  county  of  Niagara,  in  New  York,  charged  with  having 
been  one  of  the  parly  or  military  force  engagtjd  in  the  destruction  of  the  Caroline. 
His  arrest  took  place  in  November,  1840.  He  was  afterwards  indicted  lor  muj*- 
dor  for  his  participation  in  that  outrage,  and  particularly  on  account  of  the  death 
of  a  |)oor  creature  named  Durfee,  belongin::  to  the  steamboat,  who  bad  been  found 
dead  on  the  dock  the  niorninc  after  the  attack  :  and  he  was  held  in  close  confine- 
ment in  the  jail  at  Lockport  to  await  his  trial  on  lliai  chartie. 

in  December,  1810,  the  correspondence  referred  to  took  place.  Mr.  Fox  pre- 
sented tiif?  case  of  McLi.'od  to  ihc;  (iovernment,  and  recpiested  its  inte  f^rence  to 
procure  his  release,  avowinir,  as  the  ground  of  this  reipiesf,  that  "the  =  i:>"-uction 
of  tli(!  (Caroline  tons  a  pulilic  act  of  pi;rsons  in  her  .Majiisty's  service,  obiying  the 
orders  of  their  superior  authorities."  'I'iiis  avowal,  it  will  be  observed,  was  in 
strict  accordance  ami  aiiri^emeiit  with  the  position  which  had  been  assumed  by 
our  (»ov<'rnment,  and  wliich  had  been  presented  to  (Jirat  IJritain.  Mr.  Forsyth 
RO  considers  it  in  his  reply,  informing  tlie  IJritish  Minister  that  this  was  the  first 
time  the  admission  had  been  made  by  any  one  havintf  authority  to  make  it,  and 
reminding  him  that  no  answer  had  yet  been  given  to  tiie  demand  which  had  been 
presented,  upon  this  very  ground,  to  his  (ruvornment  for  redress.  In  regard  to  Mc- 
Leod, he  informs  Mr.  Fox,  in  substance,  that  be  is  in  the  hands  of  the  law,  and 
the  court  will  decide  on  the  validity  of  the  defence  which  the  Minister  sets  up  for 
bim  when  legally  established  before  it. 

Ill  March,  1841,  Mr.  Fox  renewed  his  correspondence  on  this  subject  with  the 


6 


SncrctJiry  of  Stnic.  Wn  iMfdrms  ilf  Sccn.'tnry  ihiil  his  fJovcrnnu'iil  lind  Jipprnvfd 
of  tin?  ciiiirsc!  puiMii-d  l»y  liirti  in  his  U'IKts,  ;iii'!  ot'  ihi-  liiii<;iMUi'  In;  liiid  t'ni|(l()vr(l ; 
and  ihal  hr  w^is  now  instrnctcrl  to  (li-initiid  lorniiilly  lln-  iiniufdiiiK!  ndciisf  ofMc- 
Lcod,  lie  llii'ii  |)idcfc(l.s  lo  .set  loiih  iiuniii  {\\i'.  |iirci-«' utonnds  on  whicli  ihi.s  ('o- 
iDiiinl  w;is  in  idc,  uioch  is  donr  in  ihrsc  words  :  "  Thiit  tlu;  lran.%ii(:iion  on  iH-cotint 
of  whi(  h  iMcfji'od  has  hrcn  iirrcsKid,  and  is  lo  lii>  put  upon  his  trial,  was  a  Irnns- 
action  ot  a  pnlilic  cliMMCii'r,  planiici'  and  twrLiilfd  i)y  persons  (hd\  cnipowiTtd 
by  her  Maji-sly's  coinnial  iuiiliorilirs  to  lako  any  steps  and  to  do  any  acts  wliich 
niii,'iil.  1)1'  iM'i'essary  (or  the  di-Cencc  ol' iicr  iMiijestv's  territories,  and  lor  the  ptoiec- 
tiun  of  hf'r  M  ijcsiy's  suhjecis."  "  'I'he  tr.in'«iciioti  was  a  jiistili  ible  einployinent 
of  force  tor  the  parjiose  of  (h-fendiiit;  iht;  IJrilisli  territory  from  an  unprovokiid 
attack,"  ».Vc. 

Under  date  of  the  •2[\\\  of  April,  1S41,  the  letter  of  Mr.  W'ehster,  the  present 
yocretary  ol  State,  in  repiv  to  Mr.  Fox,  was  written,  and  a  ni.lile  letter  it  is. 
"  The  (act,"  says  Mr.  Wehstrr,  "  thai  the  di'strnction  of  the  Caroline  was  an  act 
of  pnldic  force  hy  the  British  aiilhurilies  hein;:  formally  communicated  to  the 
(iovermiKiiit  of  tin;  luiiied  Siatrs  hy  Mr.  Fox's  note,  the  case  assiinir's  a  decided 
aspect."  "  The  iiiidersiiMied,"  hi;  .-iays,  "  has  now  to  signify  to  Mr,  Fox  that  the 
(Government  of  the  Uniiid  Siati's  his  not  clianiicd  the  opinion  wliicli  it  has  here- 
tofore expressed  to  her  AIaj<st\'s  (iiuci  nmriit  of  tiie  character  of  the  a(  I  of  dc- 
stroyinji  the  Caroline."  'I'here  was  no  difli  reiico  of  opinion  helween  the  two 
Governnieiits  in  ri'i:ard  tn  tlie  character  of  liiat  act^:  just  as  it  liad  heen  (harued 
on  one  side,  it  had  now  ln'cn  .idmiitid  and  avowed  on  tiie  other.  And  Mr.  \\'ehster 
proceeds  to  remind  the  IJritish  Minister  liiat  it  still  remains  for  his  Goveriiinent  to 
show  how  tills  ontraiie  was  to  lie  defended  ;  and,  in  a  fi'w  words,  put  together  ill 
his  own  sii^niiricant  and  ininiilahle  \v;iy.  he  warns  the  iMinister  and  his  (jovern- 
niODt  of  (he  dillicull  task  whicii  those  will  have  who  shall  onderlakc  that  defence 
and  justification. 

In  reirird  to  McLeod,  Mr.  W'ehster  inftn'ins  Mr.  Fox,  in  snhstance,  as  he  had 
been  informed  hefore  hy  Mr.  Forsyth,  that  McLood  was  in  tlu;  hands  of  tlu^  law, 
and  conid  h(;  rehiased  oiiiy  "  hy  such  piocee(!in<:s  as  are  usual  and  are  siiitahle  to 
the  case."  II(!  makes,  however,  at  the  same  time,  the  manly  and  I'xplicil  dec- 
laration, that  "  the  American  People,  not  distrustful  of  their  aliiliiy  to  redress  pub- 
lic wrotiijs  hy  |)uhlic.  means,  cannot  desire  the  punishment  of  individuals  when  the 
act  C(,mpi,iiiu'd  of  is  di'cl  ired  to  have  heen  an  act  nf  the  (iovernnient  itself.'* 
And  Mr.  Fox  is  informed  that  the  American  (iov(!rnnienl,  eutertaininjj  no  doubt 
that,  under  the  circumstances  of  the  case,  individuals  concerned  in  the  transaction 
referriul  to  ou^ht  not  to  he  hohlen  personally  responsible  in  the  ordinary  tribunals 
of  law,  had  decided  to  take  such  measures  in  regard  lo  McLeod  as  the  occasion 
and  its  own  duty  ap[)eared  to  reipiire. 

As  is  well  known,  the  President  sent  the  hiirhest  law  ofl'icer  of  the  Ciovernment, 
the  Attorney  (General,  into  the  State  of  New  York  to  confer  with  the  public  au- 
thorities there,  and  to  furnish  to  them  and  to  the  courts  tiie  authentic  evidence, 
from  the  records  and  archive-s  of  the  (government,  relative  lo  the  affair  of  the  Car- 
oline. And  it  is  this  act  that,  has  heen  so  much  complaintd  of  in  debate  liore, 
and  in  New  York, 

Sir,  I  hold  it  to  have-^'cn  the  boundeii  and  indispensable  duty  of  this  Gov- 
ernment to  have  done  at  lea-.t  as  much  as  was  done  in  this  case.  Let  it  be  re- 
membered that  the  character  of  tiie  transaction  out  of  whicli  the  arrest  of  McLeod 
had  arisen  had  already,  and  at  an  early  day,  been  determined  by  the  President; 
that  a  representation  had  acconiinaly  heen  miuie  to  the  British  (Government,  and 
a  response  had  been  receivetl,  conlaininc;  an  explicit  acknowledL'mcnt  that  the 
tran.<action  had  been  trufi/  characterized  and  determined  by  the  President.  Let 
it  be  remembered,  also,  tliiit  liiis  deti^rminalion,  on  the  part  of  the  President,  set- 
tled precisely,  for  the  whole  country,  the  particular  relation  in  which  Great  Brit- 


I 
1 


I 


pprnvfd 
|ili)\  ( (I ; 

•  of' Me- 
lius ('e- 
iiccdunt 
a  I  in  II  s- 
|ii)\vi'r(  (1 
l.s  which 

•  pioicc- 
loyiiii'iit 

l'UV()k(!(i 

proscnt 
Icr  it  is. 
IS  an  act 
(1   to  llie 

ilccidcd 

(li;it  llie 
liis  lieru- 
cl  of  (Ic- 

tlio  two 
I  cliiir^i'd 

Webster 
niiiifiit  to 
pcllirr  ill 

(jiivf^rn- 
t  defence 

as  lie  had 

f  tiie  law, 

litalile  to 

it'll   (lec- 

Ircss  pub- 

w  lie  11  tlio 

t   itM'lf." 

no  doubt 

ansnction 

tribunals 

occasion 

/eminent, 
iiibiir  au- 
I'videncp, 
■  the  Car- 
ale   here, 

this  (lov- 
it   be  le- 
f  Mr  Lend 
resident ; 
nient,  and 
t  that  the 
ent.     Let 
ideni,  set- 
real  Brit- 


ain, a  foreisii  nation,  had  stood  to  liiis  n  ition  in  that  partinilrir  trnnsartion,  nnd 
whether  it  was  n  rehitioit  of  war  or  of  peace — a  deterniiiialion  which  belinufdex- 
oliiHively  to  the  Kxeciiiivo  of  ihe  nation  to  make,  nnd  -.vliicli,  as  1  siiall  have  oc- 
casion lo  show  more  fully  before  I  close  my  ,einarks,  when  made,  was  eonciiiviive 
on  all  courts,  and  all  persons  and  pariii  s  t'  (jU'iIioiiI  llie  country.  But  all  the  au- 
thentic proof  of  the  facts  her.;  adverted  to — of  the  actual  character  of  the  trans- 
action, and  the  de<'ision  of  the  Kxeciitise  thai,  in  this  transac'ion,  the  British  au- 
thorities  iiad  placeil  iheiiisi  Ives  in  an  attitude  and  relation  ot  hostilily  and  war  to- 
wards the  United  States — the  authentic  proof  of  all  thisi  remained  witli  the  Kxec- 
iitive,  amonij  the  archives  ui  the  (iovernmeiit,  sicret,  except  so  far  as  he  niiiiht 
see  fii  to  disclose  ilit-iii  :  and  I  should  be  'j;lad  to  know  what  could  have  been  more 
appropriate,  lioiind,  as  I  contend  he  was,  to  furnish  lo  the  authoritii  s  and  the  courts 
of  New  York  the  facts  necessary  to  the  proper  understandini^  of  the  affair  of  the 
Caroline,  than  that  he  shuulfl  send  lo  that  Stale  tiie  projier  (aw  ollicer  of  the  (iov- 
ernmeiit, with  lh(!  jiapersand  documents  which  contained  the  only  authentic  proofs 
applicable  lo  ihe  ciise  ?  Sir,  I  am  sorry  thai  any  body  connected  with  the  public 
authorities  of  N.-u  York  should  have  ihou'^ht  it  iiicunihent  on  them  to  complain 
of  this  act,  as  an  interference  in  the  affairs  or  with  the  courts  of  justice  of  that 
State.  I  remember  an  occurrence,  not  iinconiK  cti  d  with  McLeod,  which  it  would 
liave  lieen  much  more  ciediialle  to  have  coiiiplainerl  of,  as  an  imjustifiable  inter- 
ference with  the  courts  and  ih"  adniinistialioii  of  the  law,  and,  indeed,  to  have 
noticed  in  some  etJici.-nt  way — I  alluih?  lo  the  disiiraceful  spectacle  of  an  excited 
populace,  "lathered  liefore  or  about  tin;  courl-laane  and  jail  at  Lockporl,  where 
M(-lieod  bad  bicn  confined,  and  wbicli,  liy  menaces,  and  a  show  ot  arms  and 
force,  compelled  a  judicial  fimclionaiy,  who,  in  the  exercise  of  his  own  lawful  au- 
thority, had  dc'-ided  and  decreed,  upon  'iioiinds  satisfaciorv  lo  himself,  that  Mc- 
Leod  should  l)e  h-t  to  bail,  to  reverse  ihe  judL'meut  he  had  pronounced,  and  give 
back  McLeod  ai'ain  lo  the  reslrainl  ot  his  [irisou  and  his  cell.  If  any  loud  com- 
plaint (d  this  transaction  was  ever  made  in  the  f|uarters  whore  il  should  have  been 
complained  of,  it  whollv  escaped  my  heaniiu  or  observation.  I  do  not  remember 
that  any  lari;e  rewards  were  ever  offered  tor  the  deleclioii  of  the  leaders  in  that 
ontraf^e,  or  that  any  sp(;cial  ord(;rs  were  ever  jjiven  to  the  otVicers  of  justice  to  aid 
in  brinsrinsr  the  aeiois  concerned  in  il,  or  any  of  tli>iii,  to  condiiLMi  punishnient. 
Sir,  I  speak  of  this  aliair,  so  disi.rra<«  I'ul,  not  to  ,\ew  York  only,  hut  to  the  whole 
country,  with  the  more  freedom,  as  I  do  willi  llie  more  reirrel,  because  it  is  New 
York  that  is  more  immeiliately  concerned,  .uul  liecause  the  administration  of  that 
Stale  is  in  ilu-  hands  of  iliose  to  whom  I  am  limii  p<isoiially  and  politically  at- 
tached. Within  my  recollection,  this  is  ihi'  first,  and  [  irust  in  (jod  it  will  be  the 
last  instance,  occuriin'.'  in  lliat  noble  Stale  of  a  direct  pojiular  interference  with 
the  administialion  (d  justice  in  the  criminal  cfjiirls. 

Mr.  Speaker,  having  presented  vou  with  a  liriel  recital  of  the  leadinfj  facts  in 
relation  to  the  de>tru(  timi  of  the  ('aiolinr — liuNiin:  sIionmi  what  that  transaction 
was,  as  characteri/rd  and  (hMerniined  by  the  President,  and  what  the  steady  and 
unwavering  course  of  ibis  <iovernmeni  has  been  on  the  subject,  in  whose  hands 
soever  the  (lovernment  has  been,  I  come  now  to  consider  the  opinion  of  ihe  judges 
of  the  Supreme  (.'oiiit  ot"  New  N'oik  in  tlie  case  of  McLeod,  to  which  I  have  be- 
lore  retVr.'ed.  I  desire  to  treat  this  opinion  with  p(;rfecl  respect,  not  only  on  ac- 
count of  the  personal  re<>ard  which  i  have  for  ihe  iearivd  iientlemen  who  compose 
that  tribunal,  iiut  beca'isr  of  the  profound  veneration  which  (  fet;!  for  the  sacred 
office  which  they  fill.  I  must  taki'  occasion  to  remark,  however,  that  this  opin- 
ion, in  all  thai  part  of  it  which  I  shall  now  examine,  was  and  is  wholly  extrajudi- 
cial, and  I  shall  consider  it,  therefore,  as  the  ojiinion  of  three  gentlemen  of  high 
siandins  and  respectability,  and  enlillo^d  to  jusi  so  much  weioht  as  its  own  merits 
mielit  rjive  it,  siipposinir  it  to  have  been  delivered  by  lliem,  in  debate,  on  this  floor, 
^landing  where,  from  their  well-known  political    associalions,  they  would  have 


•toud,  if  hero — in  the  ranks  of  tlui  ()|>|iositi<)ii,  Tlic  cnso  of  Mchi'od  wns  hroii^lit 
befuru  lliu  cuiirt  on  habeas  corpus,  iiu  bc-iiu>,  under  indiriniiiit  for  nun  Jcr  ;  and  his 
dittchari;*!  was  askod  for  hy  hi!«  counsel  on  (lie  'jronnd.  snlisiiiiiiinlly,  of  tlie  farts  as 
I  havo  hiid  occasion  in  re  to  relate  tlieni.  The  court  decided,  in  (lie  first  place, 
that  the  law  wituld  not  allow  tlieni  to  discharire  the  (irisoner  on  this  process,  after 
inilictiiiinl,  wilhont  a  trial,  snpposint,'  and  iidrnilliiiL'  iIk'  defence,  on  the  lac's  \nv.' 
svnU'il,  to  be  perfect  and  conclusive  ;  he  niusi  he  delivcMed  at  tlii'  hands  of  a  jury. 
So  far,  tlie  decision  was  judicial,  and  it  covered  the  whole  case  before  th«'ni. 
When  (hey  had  found  this  conchixion,  (Ik  re  was  notiiiuL'  lel't,  for  (hem  to  do,  be- 
cause it  could  not  aliect  (heir  ailjudii  ation  in  the  case,  in  the  least  dcjcee,  to  con- 
sider and  decide  whether  the  defence  set  np  would  or  would  ni)t  avail  the  prison- 
er  on  his  trial  helore  a  jniy-  Vet  thi>y  wiMit  on  to  consider  and  decide  this  very 
question — a  |)roceedinji  wholly  extrajudicial,  anrl,  in  my  opinion,  lla^iandy  im- 
proper, since  i(  was  andcip  i(in<.'  and  hnislatlinu;  a  judicial  proceeding;  and  judj;- 
ment  which  the)  niii^ht  be  called  on  to  entonain  and  |>ronounce  in  this  very  cusu, 
af(er  trial  before  a  jury. 

In  this  opinion,  drawn  up  by  Mr.  .Iintice  Cowen,  one  tbin<;  is  very  clear  and 
certain,  and  that  is  (he  conclusion  to  which  be  conies;  and  be  seems  to  mu  to  ^et 
out  Willi  (be  same  conclusion,  that  IMcLeod,  for  the  part  ho  took  in  (he  destruc- 
tion of  the  Caroline,  was  a  lelou  and  a  murderer.  I!ut  it  must  be  confessed  that 
the  reasoniiiij;  by  which  this  rtsult  is  arrived  at,  jirob.ibly  on  account  of  its  ex- 
treme subdely,  is  a  li((le  diflicult  to  t'ollow  or  (o  (hd  c(.  A  weij^lay  opinion  it 
cor(ainly  is,  since  i(  is  made  (o  press  uixni  (he  subjiu  t  under  a  siipi  rincumbent 
mass  of  ponderous  lf;;al  aiiihoritics,  which  are  piled  up  and  heaped  lotietber,  with 
iiow  much  resjard  to  method  or  to  meaninp,  I  shall  leave  others  to  determine.  FJy 
comparing  (his  with  some  aruumenls  which  ha<l  preceded  it,  on  (he  same  side,  es- 
pecially some  which  had  been  |)resen(ed  in  (he  oilier  end  of  this  caj)itol,  and  with 
which  it  alVords  sonu'  instances  of  reniarkable  coincidence,  the  fieneral  strain  and 
course  of  tboegbt  may,  I  think,  be  discernnl.  'I'he  learned  judge  has  put  lliR 
argument  into  a  legal  form,  and  built  it  up  in  a  lawyer-like  way,  upon  a  show  of 
authorities.  Well,  sir,  I  shall  undertake  to  meet  the  argument  widuuit  any  au- 
thorities :  1  will  not  (pioK!  one,  except,  peihaps,  a  single  aullioiity  to  a  single 
point,  and  that  an  authoiils  t|Uoted  and  inisa|i|)lied  by  himself.  I  shall  undertake 
to  present  the  case,  I  sny,  without  authoriiies  ;  bu(  I  (hink  I  may  safely  challenge 
all  the  lawyers  and  all  the  Jiidgiis  in  Christendom  to  produce  one  reputable  au- 
thority against  the  plain,  practical  positions  which  I  shall  lay  down  as  governing 
the  case. 

In  order,  Mr.  Speaker,  that  the  [louse  may  under-t  ind  the  reasoning  of  the 
learned  judgft  in  this  case,  I  will  undertakf;  (o  present  it,  in  a  brief  form,  and  ac- 
cording to  the  best  analysis  that  I  have  been  able  to  make  of  it.  I  believe  this 
analysis  will  present  his  argument  with  perfect  fairness,  as  well  as  I  can  under- 
stand it. 

In  the  lirst  |)lacc,  then,  the  judge  finds  a  party,  composed  of  a  lunnber  of  per- 
sons, (reading  on  ground  wliicli,  it  is  acknowledged,  does  not  belong  to  tliein. 
Prima  facif f  {Uey  are  unlawfully  there  ;  and  this  is  thcrctore,  in  law,  a  trespass — 
it  is  trespass  qiiasc  clansiim  fngit.  lie  finds,  also,  a  violence  committed,  and  a 
homicide,  by  this  parly  ;  and  this,  of  course,  is  an  assault  and  battery,  and  a 
murder.  And  this  is  the  |)roseciiior's  case.  And  how  stands  the  defence?  Why, 
tho  judge  finds  that  the  prisoner  says,  by  his  counsel,  that  this  was  not  a  tres|)ass, 
but  an  invasion  in  lawful  war,  and  the  homicide  was  not  a  murder,  but  a  kiliing 
in  battle  ;  and  here  his  honor,  the  judge,  lays  out  all  bis  strength  in  the  critical 
examination  and  repudiation  of  this  defence.  I  give  his  argument  as  well  as  I  can 
comprehend  it. 

Two  things  are  necessary  to  make  out  this  defence  :  first,  that  war  actually  ex- 
isted ;  and  next,  that  it  was  a  lawful  war.     Now,  only  two  suppositions  can  bt  in- 


V*^i-" 


es- 


9 


dulged  in  regard  to  tlie  existence  of  war  at  all :  one  is,  that  war  existed  between 
Great  Britain  and  tin-  United  Status;  tlie  other  is,  that  war  existed  between  Up- 
per Canada  and  the  rcvohitionizers  of  Navy  Island. 

The  first  supposition  is  easily  disposed  of.  No  war  existed  between  the  United 
States  and  Great  Britain;  because,  first,  no  war  had  been  declared  by  Congress, 
which  alone  is  the  war-makinv^  power  in  this  country  ;  secondly,  nu  war  had  been 
declared  by  the  British  Qiumso,  who  alone  had  the  war-niakini»  power  for  Great 
Britain  ;  and,  finally,  the  provincial  anlhoritios  of  Upper  Canada  had  not  the 
power  to  declare  or  make  war  on  the  United  States.  All  this  is  plain  as  the  way 
to  chtirch. 

The  remaining  sn[t[)()silion,  then,  is,  llial  war  (i.xisKid  between  the  revolutioni- 
7.ers  of  Navy  Island  and  Upper  ('anada — what  is  called  in  the  Books  a  "mixed" 
war — so  called,  to  distinguish  it  from  a  "  [xiblic"  war,  because  one  of  the  parties 
to  it,  as  in  all  cases  of  a  civil  or  revolutionary  conflict  of  arms,  ihouji;h  organized 
for  war,  is  not  yet  organized  or  recoL'nised  as  a  nation.  Adniiitinfr,  for  ilie  sake 
of  the  argument,  that  such  a  war  existed,  and  that  it  was  a  lawful  war  in  Canada — 
that  is,  one  to  which  the  riti;hts  and  the  laws  of  war  attached — yet,  the  moment  it 
was  transferred  to  our  shores,  it  was  unlawful ;  and  there  was  wanting,  therefore, 
one  of  the  indispensable  lefpiisites  to  give  validity  to  the  defence  set  up  for  Mc- 
Leod. 

The  learned  judge  goes  on  to  make  out  this  want  of  lawfulness,  by  a  very  par- 
ticular examination  of  the  various  grounds  on  which  the  case  had  been  or  could 
be  placed. 

First,  nothing  is  clearer,  he  insists,  th<in  that  beHig(;rants  cannot  follow  one  an- 
other into  neutial  ground,  and  there  do  battle.  It  is  unlawful  to  do  so  ;  it  is  ex- 
pressly forbidden  by  the  Code  of  Nations  ;  and  he  ijuotes  lar^'ely  from  authorities 
to  fortify  this  position,  as  if  they  had  any  ihing  ut  do  with  tiie  ciise  ! 

Then,  it  is  equally  clear,  in  his  judgment,  that  this  pursuit  by  the  provincial 
powers,  of  their  enemy  on  to  our  territory,  could  not  be  justified  on  any  pretended 
necessity  of  self-defence  ;  because,  by  recurring  to  the  plain  principl(!s  of  the 
common  law,  as  applicable  to  cases  of  assiult,  a  homicide  can  only  be  excused 
when  the  [larty  assailed  lias  retreated  to  the  wall,  and  turned  then  upon  his  adver- 
sary ;  in  short,  he  must  retreat  as  far  as  lie  can,  and  not,  as  in  tliis  case,  actually 
seek  an  opportunity  to  pursue  his  enemy  ! 

And,  finally,  it  is  clear  also,  tiiat  a  sthsefpiont  approval  of  the  act  liy  the  Im- 
perial Governmonc  could  not  make  that  lawful  which  was  unlawful  before  ;  no, 
not  even  if  a  special  ad  ol  Parliament  had  been  passed  to  that  efi'ecl  I  That  (jOV- 
ernment  might  thus  make  itself  a  parly  to  the  crime,  but  could  not  legalize  the 
act  in  those  who  committed  it. 

And  thus  the  learned  judge  dis[)oses  of  the  whole  case — with  many  more  words, 
certainly,  but  with  no  more  arguments  than  I  have  here  presented.  He  does  go,  liow- 
cvlt,  one  step  further,  and,  as  the  case  is  somewhat  remarkable,  and  seems  to  re- 
<|uirc  to  be  characterized  and  explained,  in  some  way,  beyond  any  explanation  or 
inference  to  be  diwived  from  tlie  aruument,  lie  proceeds  to  give  his  conclusion  on 
the  whole  matter.  What  think  you,  Mr.  Speaker,  was  this  transaction  according 
to  his  construction  of  it  ?  Hear  him  :  "  Tne  result  is,  that  the  fitting  out  of  the 
expedition  was  an  unwarr.intable  act  of  jurisdiction  exercised  by  the  provincial  Gov- 
ernment of  Canada  over  our  citizens."  There  !  there  is  the  affair  of  the  Caroline  ! 
The  civil  magistracy  of  Upper  ('anada  exceeded  their  municipal  jurisdiction  in 
seeking //i«;ir  criminals,  to  do  execut  "  upon  them,  on  our  shores.  Hear  him  : 
*'  Those  authorities,  being  convincc'd  oi  uer  delinquency,  [the  (Jaioline,]  sintenctd 
her  to  be  burned!  an  act  which  all  concerned  kn(!w  would  seriously  endanger  the 
lives  of  our  citizens.  The  sentence,  therefore,  was  equivalent  to  a  judgment  of 
death  !  and  a  body  of  soldiers  were  sent  to  do  the  office  of  executioners."  There  ! 
there  is  the  gospel  of  the  aflair  of  the  Caroline,  according  to  Mr.  Justice  Cowen ! 


10 


The  mat^istrates  of  l^|)ppr  Canada  excord^d  their  jtirisdiclion,  by  scndinc;  n  posse 
comitatus — wlir-io  was  iht;  sherill? — to  seize  or  desiroy  certain  (illeiiders  ajiainst 
their  inunicipai  laws,  heyoiid  llie  Imitorial  iiniits  ol  llie  provincR  !  Sir,  sir,  if  (liis 
wer»i  not  too  gravo  a  siil)jeit,  1  would  just  propose  to  tlie  wiiol'j  House  that  we 
should  now  indulge  ourselves  in  one  universal,  broad  laiipb,  at  the  utter  ludicroiis- 
iiess  of  these  notions,  and  I  do  not  tliink  there  is  a  man  on  this  lloor,  of  all  who 
are  now  honoring:  nie  with  their  attention,  of  any  parly,  who  could  refuse  to  join  it> 
it.      Bui  it  is  too  <i;r;ive  and  serious  a  niniter  to  he  disposed  oi  in  that  way. 

Mr.  .Speaker,  wt!  have  seen  already,  in  tlio  recital  I  made  at  the  coniiiience- 
ineni  of  my  remarks,  wiiat  this  transaction  in  fact  was.  It  is  just  as  easy  to  un- 
derstand tlie  law  of  the  case  as  it  is  to  understand  tli(!  facts. 

I  be^in  with  laying  down  ci-rlain  positions  and  princijiles,  which  are  too  plain 
to  need  the  sup[»ort  ol'any  uutliorities. 

First,  then,  to  make  a  war  lawful,  it  is  not  necessary  that  it  he  preceded  by  a 
declaration,  or  by  any  notice  whatever,  troui  the  party  comiiu  iiciuii  it;  and  this 
rule  applies  to  every  kind  ol  war,  whether  it  be  siilimii  war,  or  an  insohmn  war, 
as  in  the  case  of  reprisals   and  the  like,  or  a  ini.r<'(l  war,  or  a   simple   act  of  war. 

Afjain  :  Tiiere  may  l)e,  and  tlu.'r(>  often  are,  individual  or  sini.'le  acts  of  war,  to 
wliicii  all  the  laws  and  rii:hts  of  war,  as  between  the  parties  or  actors,  attach,  when 
there  is  no  staii:  jI  war,  but  on  the  contrary  a  stuti,  of  peace  between  the  Powers 
concerned  ;  such  peace,  liowever,  beini,^  broken  or  interrupted  in  such  cases  just 
for  the  time,  and  to  the  extent  ot  the  hostile  acts. 

Ayain  :  (n  order  to  make  war,  or  any  act  \yi  war,  lawful,  it  is  not  ie(piisite  that 
it  sliould  be,  at  least  in  the  estimation  of  any  body  except  the  parties  undertaking 
it,  either  necessary  or  just.  Every  civilized  and  independent  People  determines 
for  itself  whether  war,  or  an  act  of  war,  be  just  and  necessary  ;  and  that  determi- 
nation is  conclusive  on  all  the  world  in  regard  to  the  lawftiliiiss  of  tin;  war,  or  the 
act  of  war.  Tiiis  rule  a[>[)lies  to  a  warlike  act,  done  on  tlu'  plea  of  a  necessary 
self-defence,  as  well  as  an\  other. 

Again  :  The  power  to  make  war  may  be  ^iven,  and  often  is  <riven,  by  a  fiov- 
ernment,  to  a  distant  province.  It  has  been  ijiven  by  Knt;land  even  to  a  com- 
mercial corporation,  as  to  the  Kasi  (nJia  Company,  and  that  not  only  for  defence, 
but  even  h)r  a;,'i>ression  and  for  confiuest.  And  in  order  to  make  a  war  under- 
taken by  such  province  a  lawful  war.  it  is  not  neces-sary  that  the  express  warrant 
or  authority  for  it  siiouid  be  shown  ;  it  is  enoiejh,  and  it  is  conclusive  on  all  for- 
eign parties  cmicernefl,  that  the  Imperial  (lovernntent  admits  and  avows  that  the 
authority  for  the  war,  or  tin;  particular  act  of  Imstility,  existed.  The  authority 
may  not  exi>t  in  any  charter,  or  in  any  spe<'iiil  iii>lruclions,  hut  may  result  from 
the  general  ndation  between  (he  Impel  iai  (Joveinnit  lit  and  the  province,  and  the 
general  duties  arisiuij;  from  that  relation  ;  and  this  is  a  matter  to  he  jud'jed  of  exclii- 
isively  by  such  CJoverinnent.  in  the  case  before  us,  the  C'anadiaii  authorities  had 
power  to  maki  war,  in  defence  of  the  territory  and  citizens  of  lier  Britannic  Ma- 
jesty, in  that  provimu; — a  power  claimed  and  exercised  by  them,  and  conceded 
and  approved  by  her  Majesty's  (iovernment  at  home,  which  is,  in  itself,  conclu- 
sive on  us,  and  on  all  loreien  nations,  in  regard  to  tia'  Inwfulntss  of  the  war.  It 
must  not  1)0  for«roilen,  all. the  while,  that,  whether  this  war  was  just  or  necessary, 
and  can  i)e  del'eiided,  especially  in  the  particular  act  wiiich  is  the  subject  of  this 
debate,  is  another  and  a  totally  dili'erent  tpiestion.  All  that  is  meant,  when  I  speak 
of  a  lawful  war,  or  act  of  war,  is,  that  it  is  such  a  war  or  act  as  that  the  laws  of 
war  and  the  riglits  of  war  attach  to  it.  covering  with  perfect  immunity,  for  exam- 
ple, the  incident  of  killing  in  military  assaults  and  in  battle. 

Now,  Mr.  S[)eaker,  I  beg  leave  to  n!cur  to  the  fict,  hr'retofore  stated,  that,  at 
the  pf^riod  of  ihi;  d(;struclion  of  the  Caroline,  a  war  actually  existed  between  tap- 
per Canada,  on  one  side,  and  the  force  assembled  on  Navy  Island,  on  the  other; 
tliat  war  having  for  its  object,  on  the  part  of  the  Navy  Islanders,  nothing  less  that* 


11 


llio  wresting  of  tlie  provincn  of  Upprr  CniiHclH  from  tlu;  possession  and  dominion 
of  tins  Biilisli  Crown.  It  was  in  tin-  prosecution  of  lh<il  war  that  tlie  transaction 
we  are  considering  look  place — »  transaction  wliicli  we  all  believe,  and  which  wo 
have  pronounced,  to  have  heen  unnecessary,  unjust,  and  outrageous. 

It  was  undertaken,  however,  as  we  have  seen,  on  the  alleged  ground  that  iho 
Caroline  "  was  identilied  wiiii  iIk;  forces  which  had  invaded  Upper  Canada,"  and 
her  destruction,  th(  re  h)rc,  iiad  become  necessary,  in  the  judgment  of  the  provin- 
cial authorities,  as  an  act  of  self-defence;  so  necessary  that,  in  the  judgment  of 
the  same  authorities,  she  might  lie  attacked  and  destroyed  in  American  waters, 
without  subjecting  theru  to  the  cliar^ie  of  doing  an  act  "  which  the  American 
Government  could  justly  complain  of  as  a  lireach  of  neutrality." 

The  case  thus  presented,  wlien  we  are  looking  at  it  in  regard  to  the  question  of 
ilie  personal  responsibility  ol  McLeod,  may  be  con.>idered  in  either  one  of  two 
aspects.  In  the  first  place,  liii.'  proviuci^d  authorities  may  have  regarded  the  Ca- 
roline as  "  identified  wiih  (ho  force  which  had  invadid  Upper  Canada,"  by  hold- 
ing her  to  hav(;  actually  hc.loitged  to  that  force,  and  have  mad<;  a  part  of  it.  In 
this  aspect,  it  would  present  the  case  of  one  belliizerant  put  suing  another  into  a 
neutral  territory,  and  then;  giving  liim  battle.  This,  says  the  learned  jiidge- 
whose  arL'iujienl  ]  am  revi'-wirig,  wiis  unlawful  ;  such  a  thing  is  expressly  t'orbid, 
den  by  the  law  of  nations.  No  (loui)|  of  it,  Mr.  Speaker,  in  the  world.  But  how, 
and  towards  whom,  is  such  an  act  unlawful?  Why,  towards  the  neutral  nation, 
undou'niedly,  it  is  not  oidy  unlavt  liil  Imt  an  outrage — so  unlawful  is  it,  that  tho 
neutral  nation  may  at  once  lly  to  arms,  give  battle  to  both  parties,  and  drive  them, 
if  it  can,  by  tbrce  of  arms  from  its  territory.  But  does  the  judge  here  mean  to 
say,  that  every  battle  that  has  ever  taken  place  between  hostile  armies,  over  and 
across  the  line  from  the  territory  of  eiiher,and  on  neutral  ground,  was  not  a  battle 
but  a  mere  trespass  and  assault,  in  which  every  tleath  was  a  murder,  punishable  in 
the  municipal  courts  of  the  neutral  coitntry  !  Yes,  sir,  tliis  is  his  position  ;  since 
I  u.iderstand  him  to  insist  that  the  death  of  Durfee,  though  happening  as  the  con- 
sequence of  the  ntidnitibt  military  attack,  made  by  the  authorities  of  Upper  Cana- 
da on  thf!  (!!aroiine — maile,  in  the  case  here  suppos(;d,  by  one  belligerent  on 
another — was  a  murd(>r,  bei^ause  tie  attack  took  place  in  the  territory  of  a  neutral 
l'ow«r.  Admitting  thiit  the  attack,  if  it  had  been  madt;  at  Navy  Island,  would 
tiave  boon  an  act  of  lawful  war,  yet,  made  at  the  American  shore,  it  was  unlaw- 
ful, f.vni  as  hctwecn  the  part'us,  and  (Aery  death  was  a  nnirder  ! 

.Sir,  it  was  al)out  the  y.'ar  17i)l>,  I  think,  that  Admiral  Boscawen  attacked  and 
destroyed  a  F'rench  lleet  on  the  coist,  and  so  near  th;,>  shore  as  to  be  deemed  with- 
in the  waters  of  i'ortugal.  The  British  (Joverument  sent  ii  special  and  solemn 
embassy  to  the  C'ourt  ot'  Portugal  to  apologise  for  tiiis  breach  of  neutrality,  which 
was  satisfactory  ;  and,  I  believe,  the  world  would  have  heard  with  amazement  that 
the  Government  of  Portugal  projiosed  to  hold  the  parlies  to  that  alfair  individually 
responsible  in  her  municipal  tribunals,  as  for  murder,  for  every  dtiatli  that  had 
happened  in  that  sanguinary  conllict. 

But,  Mr.  Speaker,  tlio  true  history  of  this  case,  considered  in  reference  to  the 
personal  res|)onsibility  of  Mcf^eod  and  others  who  may  have  been  actors  in  it,  may 
be  read  in  anoth(>r  aspect  of  it.  If  the  Caroline  was  identified  at  all  with  the  force 
which  had  invaded  Up|)(r  Canada,  it  must  li:ive  been  as  being  engaged,  while 
owned  and  maniifMi  by  Vuierican  ciii/,ens  who  wi^re  not  a  part  of  the  invading 
force,  in  aiding  and  abetting  the  designs  and  operations  of  the  Navy  Islanders,  by 
aflbrding  facilities  for  su[)plying  them  with  men  and  munitions  of  war.  The  pre- 
tence is,  that  the  desiruction  of  ihis  boat  became  indispensable,  and  was  under- 
taken as  a  necessary  act  (d'  self-defence;  or,  to  use  Mr.  Fox's  language,  an  act 
"necessary  for  the  defence  of  her  Majcstv's  territory,  and  the  jjroteclion  of  her 
Majesty's  subjects."  In  this  aspect,  the  act  ws  an  act  of  war,  committed  within 
ihe  territory  and  upon  the  citizens  of  the  United  States.     The  authorities  of  Ca- 


12 


nada  determined,  ms  tlio  Inipotial  (Jovcrnnipnt  dorlnrrs  tliry  liad  a  ri|7lit  to  deter- 
mine, and  were  riglii  in  dctermiiilDsr,  tliat  il  li.id  lieconic  lU'Cessary  lor  them  to 
diil'cnd  liio  provinre,  not  miiy  ayninst  tiie  force  nn  Navy  Islaiui,  but  ajjainst  cili- 
xens  of  tlie  United  St;Hes  on  ilie  American  ^ll()rl!,  wlm,  as  they  ilioiiglit,  or  pr«- 
ttMided  to  tliink,  had  idenlilii'd  liieiii.selves  wiih  that  revohjtionary  I'oicl';  that  il 
was  neiTssary,  in  short,  to  cairy  the  dei'ensive  war  in  which  llicy  were  tMigajj;«;d 
into  the  United  States. 

On  every  account,  theret'ore,  uirieccssary,  iininsiiliahh!,  and  onlra(;eons  as  we 
liold,  and  tliinU  we  know,  lliis  act  of  war  to  iiave  heen,  yet  we  liave  no  warrant  or 
auiliority  to  dispute  its  liiirfittiitss — we  Invi^  no  warrant  oi'  aiiliioriiy  to  sa\'  that 
the  laws  and  rii:hls  of  war  did  not  aiiacii  to  it,  as  far  as  llie  parti(>s  «.'neat;ed  in  it 
were  concerned.  It  was  uiiderttUen  on  aiitiioriiy,  the  siiliiciency  of  wliicii  we  are 
Kot  at  iiherty  to  (lunstion  ;  it  was  plaiuied  an(i  executed  hy  ol'ficers  hearin;:  rocniar 
coniinissjojis  and  liie  11  i!,'  of  iIk  ir  country,  and  was  cotidiicte-d  in  tiie  manner  of 
lawful  tliuuuh  ol  ferocious  war,  prosecut(id  in  tiie  name  and  for  th(;  behoof  of  their 
sovereit;n.  It  needed  no  suhseipicMt  approvd  or  iivowal  on  ilit;  part  of  that  sov- 
€reit;n  to  cive  it  tiie  chractcr  oi  Liwluiuess  ;  iioi  is  its  character  of  lawfulness  af- 
fected in  any  manner  by  tlie  consideration  of  what  our  opinion  may  be,  or  what 
the  facts  may  show  thi  world,  iti  reirard  to  the  (picstion  whether  it  may  or  may  not 
be  defended  and  justile.d  as  a  mxtssaiy  act  of  sell-defci.ce. 

But  the  iearni'd  jud<.'e,  with  wliosc  arirMUicnt  1  am  dcaliuLT.  still  and  stronsjly  in- 
sists that  ih.re  can  bf;  no  such  thinu;  as  lawful  war,  or  a  lawful  act  of  war,  in  a 
state  of  jieace.  Well,  sir,  on  this  point  I  shall  content  myself  with  referring, 
briefly,  lo  a  few  cases,  wiiich  seem  to  me  to  be  very  much  in  point,  and  which  [ 
shall  love  him,  aiif!  others  who  tiiiuk  with  him,  todit'esl  as  well  as  lliey  can. 

in  17"1,  a  Spanish  comniodort  ,  with  four  or  live  I'riL'ates  under  his  command, 
Eiade  a  military  attack  on  Falkland's  island,  then  in  the  peaceable  possession  of 
the  ICuL'lish,  with  whom  the  Sj)aiiis!i  nation  were  at  [)eace,  and  compelled  a  sur- 
render to  tli(^  arms  of  his  master.  His  Catholic  iMai<>siy  disavowed  the  act  of  his 
officer,  and  ofli  red  every  ecjuilable  satisfaction  ;  but  it  was  iicve.r  heard  of,  I  be- 
lieve, that  till'  comumdore,  or  any  body  under  him,  was  held  lo  be  amenable  to  the 
Kiunicipal  laws  of  Ent'laud,  as  for  trespass  and  munier. 

A  similar  occurrence  took  place  in  ITSf),  between  the  sante  itarties,  in  regard  to 
an   EuLdish   selllemeul   at    Nootka    Sound,   and  with    very    similar    results  in  al  1 
respects. 

And  we  are  not  without  some  cases  which  t(uich  ourselves  much  ntore  nearly. 
What  was  the  attack  of  the  Leopard  on  the  American  IVitjaie  Ches;ipeake  ]  The 
two  countries  were  at  peace  ;  was  or  was  not  this  an  act  of  war?  No  war  had  been 
declared  l.>y  either  party  ;  and  certainly  the  iJritish  commander  had  no  authority 
to  mak(!  war.  But  he  bote  the  commission  and  Ibej  of  his  sovereiixn,  and  under 
these,  and  in  the  name  of  his  sovereign,  he  p'oured  a  broadside  into  an  American 
Rian-of-war  ;  was  it  an  act  of  war,  or  was  it  not  ]  and,  if  not,  what  was  it  ?  It 
was  doiu!  without  sulticii  nt  warrant  ;  whs  disiivovved  by  his  sovereiL'n,  who,  by 
way  of  reparation,  made  provision  for  the  families  ol  those  who  were  killed  by  the 
murderous  tire  of  his  artillery  ;  but  lU)  body  ever  dreamed  of  holdins  tlif;  commander 
r.f  the  Leopard,  mucii  less  one  of  his  sailors,  rrsp(Uisible  lo  our  municipal  tribunals 
as  for  a  murder  committed  on  tlie  hiuh  seas. 

To  allude  to  only  one  casi;  more.  In  ISiS,  we  were  euiraszed  in  a  war  with  the 
Seminoles,  the  conduct  of  which  was  comiuilted  to  General  .fackson,  with  in- 
structions which  forbid  his  enterintr  Florida,  then  a  [irovince  of  Spain,  with  whom 
we  were  ,it  peaci;,  iir.ccpt  in  clusv.  pursnit  of  his  rncnii/  ;  and,  in  that  case,  to  r<;- 
specf  (he  Spanish  aiifhnriti/  wherever  it  was  viaintuincd.  General  Jackson  en- 
tered Florida,  not  in  pursuit  of  his  enemy,  the  Seminoles,  but  to  take  forcible  and 
military  possession  of  the  forts  of  St.  Mark  and  Pensacola,  then  under  Spanish 
authority,  which  he  accomplished.    This  was  done,  of  course;,  as  an  act  of  hostility 


13 


and  war  against  tlm  Spanish  possessions  in  Florida  ;  and,  tliough  the  forts  were 
ordered  to  he  innnodiutcly  restored,  these  acts  were  deem(  d  by  tiie  Government 
not  unjtistiriahle,  on  the  ground  of  the  protection,  if  not  aid,  which  the  Seniinoles 
were  accnsloint"!  to  find  at  the  hands  ol' the  Spanisli  authorities.  Pray,  Mr.  .Jus- 
tice Cowen,  was  this  an  act  of  war  or  ot  peace  ?  And  do  you  iiold  that  every 
vioh.'nt  dealli  whicli  may  iiave  occurred  in  liiis  expedition  was  a  ;i:urder,  for  which 
not  only  tlie  old  hero,  but  the  meanest  soldier  in  hi.i  army,  might  have  been,  and 
oiifiht  to  have  l)een,  tried  and  hanged,  under  the  municipal  laws  of  Spain  ? 

But  let  me  make  a  supposition  or  two,  in  regard  to  this  very  affair  of  the  hostile 
attack  we  are  now  considerinj:.  Suppose,  for  example,  tnat  some  briuadier  or  col- 
onel of  militia,  having  got  wind  of  the  meditated  attack  on  the  Caroline,  had  sud- 
denly assembled  a  force  of  a  liundrt^d  men,  and,  in  concrt  with  the  crew,  had 
been  prepared  to  receive  Captain  Drew  and  eive  him  battle,  and  that  then,  in- 
stead of  one  or  two,  half  a  hundred  had  fallen  in  the  engagement,  what  would  Mr, 
Justice  Coweo  think  of  the  case  then '? 

Or  suppose!  that  Colonel  McNab,  instead  of  the  Caroline,  had  thought  it  a  ne- 
cessary act  of  self-defence  to  attack  and  destroy  the  city  ol  IJulfalo,  on  the  alleged 
ground  that  that  city  was  engaged  in  aidint;  the  revolulionizers  of  Navy  Island 
with  sup[)lies  of  men,  provisions,  and  niutiitions  of  war  ;  and  for  this  purpose  he 
liad  come  over  himself  to  a  midnight  attack  in  command  of  a  thousand  men:  Or 
suppose,  in  his  zeal  to  serve  his  Queen,  he  had  projetied  another  Con  ord  affair, 
and  had  sent  a  heavy  force  to  march  to  Balavia,  Ibrly  miles  in  the  interior,  to 
destroy  the  arsenal  and  military  stores  at  that  place,  on  tiie  <:round  that  that  arse- 
nal had  supplied,  and  would  supply,  such  stores  to  the  lorces  on  Navy  Island: 
Will  any  gentleman  here  undertake  to  distinnuish,  in  principle,  between  tho 
cases  1  have  here  supposed,  and  the  case  of  the  attack  on  tlie  Caroline  as  it  actu- 
ally occurred  {  No,  no;  they  are  cases  of  more  breadth  and  magnitude,  and 
there  might  have  been  a  greater  destruction  of  property  and  of  life,  but  the  char- 
acter of  the  transaction  would  have  been  the  same.  It  is  only  enlarging  a  little 
the  scale  of  the  niap,  that  we  may  see  more  distinctly  the  character  and  features 
of  the  country  we  are  «!xploring. 

Mr.  Speaker,  quitting  now  the  grounti  1  have  occupied  thus  far,  I  nuist  take 
the  libertv  to  sui'gesl  another  position,  which  I  assume  in  this  case,  and  to  which 
I  have  alrcad\  allud"d,  in  reference  to  the  duty  of  the  courts  in  New  York,  in  re- 
<;ard  to  McLeod.  The  time  that  remains  to  me  will  allow  me  to  do  little  more 
than  make  the  suggestion. 

I  have  before  referred  to  the  distinct  fact  that,  in  an  early  stage  of  this  business, 
the  President — the  tlxecutive  of  the  Federal  Government — took  upon  himself  to 
determine  the  character  of  the  transaction  by  whicii  the  Caroline  was  destroyed, 
and  that  that  decision  had  never  been  changed.  By  determining  that  this  was  au 
act  of  war,  directed  against  the  LInited  Stalen,  it  resulted  that,  quoad  hoc,  the 
relation  between  the  United  States  anl  (ireat  Britain  was  a  relation  of  war, 
and  not  of  peace.  This,  then,  was,  in  substance  and  efi'ect,  the  decision  in  the 
case — a  decision  which  it  was  the  province  of  the  F^xecutive  to  make,  and  which, 
once  made,  was  binding  and  conclusive  on  all  persons  and  parlies  who  might  be 
affected  by  it,  and  on  every  court  in  the  country. 

On  this  point  it  is  that  1  (|uote  a  single  authority.  It  had  been  determined  by 
Kxecutive  authority  in  Entdand  that  a  certain  port  in  St.  Domingo,  at  a  certain 
period,  (about  the  year  1807,)  was  no  longer  in  possession  or  under  the  dominion 
of  France.  ,\  (piestion  in  relation  to  trading  at  this  port  arose  in  the  courts,  and 
it  was  in  reference  to  that  question  that  Lord  Ellenborougli  said,*  "  It  belongs  to 
the  Government  of  the  country  to  determine  in  what  relation  of  peace  or  war  any 
other  country  stands  towards  this  ;  and  it  woidd  he  unsafe  for  courts  of  Justice  to 


•  15,  East  R.  p.  90. 


14 


take  upon  them,  without  tlmt  authority,  to  decide  upon  these  relations.  But  when 
the  Crown  h;is  decided  upon  the  relation  of  peace  or  war  in  which  another  coun- 
try stands  to  this,  there  is  an  end  of  the  question  ;  and,  in  the  ahsence  of  any  ex- 
press promulgation  of  the  will  of  the  sovereign  in  that  respect,  it  may  be  collect- 
ed from  other  acts  of  the  State."  "  The  courts  cannot  decide  adversely  to  the 
declaration  of  the  sovereign  upon  that  point." 

Mr.  Speaker,  I  shall  not  pursue  the  case  further.  1  do  not  in  this  place,  what- 
evf>r  I  mii;hl  do  elsewhere,  impeacii  the  opinion  of  the  Supreme  Court  of  my  State, 
so  far  as  that  opinion  was  judicial  in  its  characti-r.  The  court  decided  that  they 
could  not  leirally  discharge  McLeod  on  habeas  corpus.  Very  Well  ;  1  regret  that 
the  judges  did  not  stop  there.  But,  with  the  whole  of  the  facts  he.fore  them,  with 
facts  to  show  what  the  character  of  the  transaction  in  the  destruction  of  the  Caro- 
line was,  and  what  the  Govennnenl  of  tlie  United  Slates  had  decided  and  declar- 
ed it  to  have  beeti,  and  thougii  there  was  no  longer  any  matter  or  parties  before 
them,  upon  which,  or  between  whom,  they  could  adjudicate,  yet  they  went  on  to 
give  their  opinions  in  the  case,  and,  in  so  doin;r,  thus  committed,  in  my  humble 
judgment,  a  triple  error  and  injury — first,  in  giving  any  opinion  at  all  in  a  case 
where  they  could  decide  nothing  by  it  judicially  ;  next,  in  giving  an  opinion  too 
palpably  wrong  to  admit  of  doubt  or  question  ;  and,  finally,  in  attempting,  by  that 
opinion,  to  reverse  the  high  d»'cision  of  the  Fxecutivc  in  a  national  matter  with 
which  th(;y  had  no  ri^ht  whatever  to  intermeddle. 

Once  tor  all,  sir,  let  me  here  say — not,  perhaps,  to  prevent,  hut  to  condemn  he- 
forehand,  all  misri-presentations  of  my  sentiments  on  this  snbji'ct — that  I  regard  this 
transaction,  the  destruction  of  the  Caroline,  as' a  high-handed  outrage,  and  among 
the  very  rankest  of  the  many  rank  and  gross  outrages  which  have  been  committed, 
at  sundry  times,  by  the  authority  of  Great  Britain,  in  the  name  of  thai  hauglity 
nation.  And  in  regard  to  the  persons  concerned  in  it,  there  was  an  apparent  rea- 
dir>ess  and  alacrity  in  ihem  for  this  bloody  business,  which  has  aroused,  and  justly 
aroused,  a  sense  of  burning  indignation  towards  tliem  in  the  breast  of  every  riglu- 
hearted  American.  The  vainglorious  boasting  of  McLeod  is  almost  enough  to 
make  a  Clirisiian  wish  to  give  his  offal  to  the  dogs.  Sir,  the  name  of  no  man 
connected  with  this  outrage  can  or  ought  to  he  mentioned,  in  any  company  where 
Americans  are  assembled,  without  all  voices  being  raised  in  one  common  shout  of 
execration.  And  I  doubt  not  that,  at  this  moment,  the  resolution  lives  and  burns 
in  a  thousand  patriot  hearts  to  seek  out,  at  any  distance  of  time,  on  the  very  ear- 
Jiest  lawful  occasion,  or  single  out  in  the  first  battle  field  in  which  tiKjy  shall  dare 
show  themselves,  every  man,  high  or  low,  who  is  known  to  have  had  a  part  in 
that  deed  of  butchery  and  blood,  and  immolate  him  to  the  manes  of  our  murdered 
countrymen.     What  I  want  is,  that  they  should  wait  for  a  lawjul  occasion. 

Mr.  Speaker,  I  cannot  tell  what  is  to  be  the  end  of  the  controversy  between 
Great  Britain  and  us.  I  trust  that  our  Government  will  not  softer  itself  to  be 
turned  aside  from  its  high  duty  by  any  collateral  matter,  but  will  keep  England 
steadily  to  the  great  issue  which  it  has  tendered ;  and  that,  above  ail,  it  will  yield 
nothing  to  any  attempts,  in  whatever  quarter  made,  to  take  the  mai.agement  of 
our  foreign  affairs  and  relations  out  of  its  hands. 

In  my  opinion.  New  York  has  gone  quite  far  enough,  especially  considering  the 
political  relation  in  which  the  authorities  of  the  Stale  stand  to  those  of  the  United 
States,  in  thwarting  the  proper  views  and  action  of  this  Government  in  a  matter 
of  great  national  interest.  Talk  of  Federal  interference  and  State  rights  in  New 
York  !  Sir,  she  has  no  inherent  or  other  weakness  to  make  it  necessary  for  her 
to  gasconade  about  State  rights ;  she  can  afford  to  do  her  whole  duty,  ns  a  mem- 
ber of  the  confederacy,  towards  the  Federal  Government  ;  and,  above  all  things, 
I  want  her  to  know  that  there  is  no  harvest  of  glory  left  in  all  the  broad  field  of 
nullification  for  her  to  reap. 

Sir,  this  man  McLeod  ought  to  have  been  released  by  some  appropriate  pro- 


15 

ceeding  in  tlio  courts  witliout  a  trial.  He  sliould  either  iiavp.  been  discharged  on 
habeas  corpus  or  by  a  nolle  prosfqui,  entf  red  by  tlie  Attorney  (ieneral,  under 
the  direction  of  tiie  (lovernor,  or  be  should  iiiive  been  let  to  bail  on  his  own  recog- 
nizance. But  it  seems  he  is  to  be  put  to  iiis  trial  before  a  jury.  Well,  sir,  he 
will  be  acquitted  ;  admitting  it  [)roved  that  he  was  one  of  the  party  that  attacked 
and  destroyed  the  Caroline,  he  will  be  acquitted,  and  accjuitt'id  on  the  law  of  the 
case  as  i  have  here  presented  it.  ISir,  they  n)i^ht  take  a  jury  from  Lockport, 
half  of  whom  should  be  "  sympathizers"  or  "patriots" — for  1  profess  to  know 
what  honesty  a  Lockport  jury  is  capable  of,  in  times  oftiie  greatest  excitement — 
I  have  tried  them  in  such  a  time — and  they  mi^ht  send  Mr.  Justice  Cowen  to  pre- 
side at  the  trial,  as  another  judge  of  the  Supreme  ('ourt  was  sent  to  preside  there 
on  another  occasion — the  occasion  to  which  I  have  just  alluded — and  he  might 
appp,ar  there  with  this  learned  opinion  of  the  whole  bench  to  back  him  ;  and,  my 
life  for  if,  only  let  McLeod  be  faiihfully  deA-nded,  as  he  would  be  if  he  had  the  ser- 
vices of  his  present  counsel,  no  such  jury  could  be  found  that  would  pronounce 
him  piiilly.  I  know  these  people  who  compose  the  juries  in  our  court:  of  law  in 
New  Vork  ;  and,  whatever  others  migiit  do,  they  cannot  be  made  deliberately  to 
stain  their  iiinds  and  souls  with  the  blood  of  any  man,  liowever  odious,  who  is 
shown  to  lie  innocent  of  any  hgal  oflcnct^,  ihouch  ihey  he  offered  all  the  securities 
and  immunities  for  their  own  crinie  which  the  imposius^'  forms  of  judicial  proceedings 
can  afford.  Tiie  actpiittai  of  McLeod  will  relieve  the  main  issue  between  the 
two  countries,  in  relation  to  the  destruction  oftiie  Caroline,  of  a  collateral  matter, 
unhappily  thrust  into  the  case,  and  leave  the  American  (Jovernment  free  and  un- 
embarrassed, 10  bring  the  dispute  to  a  decision  ;  so  that  if,  after  all  proper  and 
earnest  endeavors  to  avoid  the  necessity,  we  shall  be  compelled  to  take  up  arms 
in  the  case,  we  shall  go  to  war,  not  in  defence  of  a  judicial  murder,  as  some  would 
seem  disposed  to  have  us,  but  in  vindication  of  the  sovereignty,  the  independence, 
and  honor  of  the  country,  against  a  great  national  wrong  and  injury,  for  which  we 
could  not  obtain  redress  in  any  other  way. 


her 


